Factual and Procedural Background
On 20 November 2018, His Honour Judge Harris-Jenkins concluded a 14-day hearing in care proceedings concerning three male children aged eight years, four years, and 21 months. The appeal concerns only the middle child, referred to as J, now aged five years. The dispute arose from differing views between the judge and the local authority regarding whether J should be placed for adoption or long-term foster care. The statutory threshold under Children Act 1989, section 31 was conceded due to evidence of poor and chaotic parenting over four years. The children had remained in their mother's care during proceedings but were removed shortly before the hearing's conclusion.
The eldest child, B, was placed under a full care order with a plan for long-term fostering with therapeutic support. The youngest child, K, was placed under a full care order with an adoption order authorising placement for adoption. There is no appeal concerning these two children.
For J, there was substantial dispute based on expert and professional evidence regarding his care plan. The local authority’s agency decision-maker (ADM) determined that J’s welfare was best served by long-term fostering and did not consider adoption appropriate. The ADM’s decision heavily relied on the local authority social worker’s assessment emphasizing J’s attachment to his older brother B. The local authority prioritized this sibling relationship and favored long-term fostering. Conversely, an independent social worker and the children’s guardian recommended adoption, ideally with J’s younger half-sibling K.
The judge conducted a welfare evaluation applying statutory welfare checklists from the Children Act 1989 and Adoption and Children Act 2002. He found the local authority social worker’s attachment assessment superficial and flawed, preferring the independent social worker’s and guardian’s evidence. The judge invited the local authority to reconsider J’s care plan and to make a placement application for adoption, extending an interim care order for J to remain in foster care pending reconsideration.
At a subsequent hearing on 14 December 2018, the ADM filed a statement reaffirming her view that adoption was not in J’s best interests, based on updated information and recordings from recent reviews. The judge had the ADM’s statement but no other new material. Unexpectedly, the local authority applied for permission to appeal the November determination, which the judge granted, citing an impasse between the court and local authority. No further judgment or review of the care plan occurred at that hearing, and the interim care order remained in place.
The local authority filed a Notice of Appeal focusing on the decisions made in November and December 2018, challenging the judge’s refusal to make a final care order and his welfare evaluation process. The children’s mother supported the judge’s approach favoring adoption, while the father supported the local authority’s appeal and advanced additional grounds of appeal.
Legal Issues Presented
- Whether the judge erred in concluding he was better placed than the ADM to determine J’s best welfare outcome, rather than limiting review to public law challenge of the ADM’s decision.
- Whether the judge should have reconsidered his decision in light of the ADM’s December statement.
- Whether the decision to apply for a Placement for Adoption order lies exclusively with the local authority rather than the court.
- Whether the judge erred in refusing to endorse the local authority’s care plan and make a final care order when the ADM had reconsidered and reaffirmed her decision not to pursue adoption.
- Whether the court should have made a final care order on 20 November 2018, given the statutory threshold was satisfied and J could not return to his family.
- Whether the judge erred in applying the adoption welfare checklist when no placement application was before the court.
- Whether the judge pre-determined the issue of dispensing with parental consent in the absence of an application and evidence on the issue.
- Whether the judge was wrong to treat a Placement order as a realistic option when no such application existed.
- Whether the judge erred in his assessment of the father’s prospects as a future carer without proper evidence or cross-examination.
Arguments of the Parties
Local Authority's Arguments
- The judge wrongly positioned himself as better placed than the ADM to determine J’s welfare outcome instead of limiting scrutiny to public law challenge grounds.
- The judge failed to reconsider his decision after receiving the ADM’s December statement that took account of his judgment.
- Parliament assigned the decision to apply for a Placement for Adoption order solely to the local authority.
- The judge erred in refusing to endorse the local authority’s care plan and to make a final care order after the ADM’s reconsideration.
- The court should have made a final care order on 20 November 2018 given the statutory threshold was met and J could not return to his family.
- The process of reconsideration between court and local authority must have an end point, reached here when the ADM made a decision not vulnerable to public law challenge.
Father's Arguments
- The judge erred in applying the adoption welfare checklist when no application for a Placement order had been made.
- The judge pre-determined the question of dispensing with parental consent absent any application or evidence on that issue.
- The judge was wrong to treat the making of a Placement order as a realistic option without such an application before the court.
- The judge was incorrect in dismissing the father's prospects as a future carer without cross-examination or conclusive evidence ruling him out.
Children's Guardian's Arguments
- The legal process undertaken by the judge was consistent with established case law emphasizing a process of mutual respect between the court and local authority in resolving impasses.
- The local authority had not yet fully engaged with the judge’s welfare analysis, and the process of reconsideration had not run its course.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Re A and D (Children: Powers of Court) [1995] 2 FLR 456 |
Process of mutual respect and reconsideration between court and local authority to resolve care plan disputes. |
Used to illustrate the expectation that disagreements over care plans should be resolved through cooperation before court imposes final order. |
| Re T (A Minor) (Care Order: Conditions) [1994] 2 FLR 423 |
Court cannot impose care order conditions requiring local authority to place child in a particular home; judge must choose lesser of two evils. |
Supported the principle that courts face difficult choices when care plans differ from their view of the child's best interests. |
| Re C (Adoption: Religious Observance) [2002] 1 FLR 1119 |
Need for partnership between local authorities and courts in care planning; judicial review as a last resort if impasse persists. |
Emphasized collaboration and mutual respect rather than adversarial impasse in care planning. |
| Re P-B (A Child) [2006] EWCA Civ 1016; [2007] 1 FLR 1106 |
Statutory procedure under Adoption Agencies Regulations must be followed before local authority can be satisfied a child ought to be adopted. |
Reinforced the role of the agency decision-maker in adoption placement decisions. |
| Re S and W (Care Proceedings) [2007] EWCA Civ 232; [2007] 2 FLR 275 |
Clear division of responsibility: court makes care orders, local authority determines care plan; court may refuse care order if plan not in child’s best interests; mutual respect required. |
Key authority relied upon to affirm the process of mutual respect and reconsideration between court and local authority, and to reject premature final orders amid disagreement. |
| C v Solihull Metropolitan Borough Council [1993] 1 FLR 290 |
Principles governing care or interim orders and the relationship between court and local authority. |
Referenced in context of local authority behaviour and cooperation with courts in care proceedings. |
| Re S (Minors); Re W (Minors) [2002] UKHL 10; [2002] 2 AC 291; [2002] 1 FLR 815 |
Limits on court and guardian roles after final care order; local authority’s responsibility for care plan implementation. |
Clarified the separation of functions between court and local authority post-order. |
| Re W (Care Proceedings: Functions of Court and Local Authority) [2013] EWCA Civ 1227; [2014] 2 FLR 431 |
Emphasized the court’s welfare evaluation role and the local authority’s duty to support placement options consistent with court’s risk assessment. |
Supported the principle that local authorities must respect court assessments and provide services to implement care plans accordingly. |
| Re T (A Child) (Placement Order) [2018] EWCA Civ 650; [2018] 2 FLR 926 |
Clarified the court’s role in resolving impasse between judge and local authority, emphasizing mutual respect and the court’s duty to see its welfare assessment through. |
Applied to support the need for further judicial evaluation and cooperation before final care orders are made. |
Court's Reasoning and Analysis
The court carefully analysed the statutory framework governing care proceedings and adoption placement decisions, emphasizing the distinct but complementary roles of the court and local authority. The court reiterated that the local authority is responsible for devising and implementing care plans, while the court exclusively decides whether to make care orders based on the child's best interests.
The court accepted that where disagreement arises between the court and local authority over care plans, a process of mutual respect, reconsideration, and cooperation is required before the court makes a final order. This prevents premature or inappropriate orders and protects the child's welfare by seeking consensus.
Applying these principles, the court found that the judge’s November 2018 approach—inviting the local authority to reconsider its care plan for J and extending the interim care order—was entirely consistent with established case law. The judge was entitled to reject the local authority social worker’s flawed assessment and to prefer the independent social worker’s and guardian’s evidence supporting adoption.
The court held that the local authority’s refusal to amend its care plan or make a placement application for adoption after the judge’s invitation led to an impasse, justifying permission to appeal. However, the court found that the December 2018 hearing was prematurely truncated when permission to appeal was granted without the judge reconsidering the ADM’s December statement or conducting a further welfare evaluation. This was an error, as the mutual respect process had not run its course.
The court also found the judge erred in prematurely indicating that he would dispense with parental consent for adoption at a stage when no application had been made and no evidence on consent had been heard, breaching procedural fairness.
Overall, the court concluded that the appeal should be allowed and the matter remitted to a different judge for further consideration of J’s welfare and care orders, ensuring proper engagement with all evidence and statutory requirements.
Holding and Implications
The appeal is ALLOWED. The court set aside the judge’s November and December 2018 determinations insofar as they prematurely ended the process of mutual reconsideration between the court and local authority regarding J’s care plan.
The case is remitted to a different Family Court judge for a fresh determination on the appropriate final orders concerning J’s welfare, including whether a care order or placement for adoption order should be made. The new judge will consider all relevant evidence, including the previous welfare analysis, but is not bound by it.
The court emphasized the importance of the statutory scheme requiring cooperation and respect between courts and local authorities in care planning and decision-making. No new precedent was established beyond reaffirming existing principles and correcting procedural errors in this case.